Main menu

Tag Archives: 14th Amendment

Yesterday’s U.S. Supreme Court decision approving gay marriage throughout the country is a long overdue recognition that everyone has a right to love and to share marriage with the whomever they like, regardless of gender.

Unfortunately, the decision has already motivated an irrational — and, on the part of some, hysterical — reaction (listen, for example, if you can stand it, to Ted Cruz) by opponents of marriage equality.

For the most part, response to these rantings would be both futile and a waste of time. However, in two respects, it is worth the time and effort to respond — these are the related claims that this decision puts the US on the path to approval of, among other things, pedophilia and polygamy.

Pedophilia

The discussion regarding pedophilia exemplifies two significant rhetorical fallacies — the so-called “slippery slope” argument and another called “moral equivalence”.

In its simplest form, the “slippery slope” argument goes like this, “if A happens, B will happen” (often with disastrous results).

However, except under circumstances where B is inevitable (which are rare), and as long as discretion can still be exercised over whether or not B will happen, the argument fails.

An example of a valid “slippery slope” argument (which will also exemplify why they are rare): “If I jump out of a 10th floor window, I will fall to the ground”. (Likely with those disastrous results mentioned above.)

On the other hand, the suggestion that “legalization of gay marriage will lead to legalization of pedophilia” is a false argument because society (through its various legislatures) still has the discretion not to legalize child molestation. And the likelihood is quite high that no legislature will ever legalize child molestation in part because of the second rhetorical fallacy here:

“Moral equivalence” is an argument that compares two things, implying that they are equal or at least similar, when in fact they are not. The significant difference between gay marriage and pedophilia is that in the former, the two participants are consenting adults who mutually desire to enter into a marriage … while in the latter, one of the two participants is a minor and therefore legally incapable of consenting to any sexual activity (and also probably mentally and emotionally too immature to make a rational decision on the subject in the first place).

Ergo, “gay marriage” is not morally equivalent to “pedophilia” and there is not logical reason to conclude that approval of the former will in any way lead to approval of the latter.

Polygamy

Similarly, the suggestion that “legalization of gay marriage will lead to legalization of polygamy” is a false argument because society also still has the discretion not to legalize polygamy.

Which is not to say that the ongoing changes in societal attitudes that have led first to acceptance of interracial marriage and now to acceptance of gay marriage will not someday lead to acceptance of polygamy … for they surely may. If they do, however, then it will be fair to say that, like gay marriage, perhaps polygamy isn’t such a bad thing after all.

As with the animosity toward gay marriage, the current strictures against polygamy are fundamentally religious in nature, albeit enforced through governmental compulsion. On the other hand, polyamorous relationships are already quite common (in the United States and other countries), even if not legally sanctioned.

Historically, polygyny (the technical name for a single male married to multiple wives), polyandry (one woman married to more than one husband) and plural marriages (families composed of multiple intermarried adult males and females) were quite common throughout the world prior to the rise of the Roman Empire and Christianity. Hindu, Jewish and Chinese history are all replete with examples of men taking multiple wives.

Polygamy is currently legal in several African and Middle Eastern countries and is acceptable in some religions other than Christianity. Muslim men, for example, may marry up to four wives (with the significant caveat that the man has to be able to care for each equally).

One historical reason (the tendency of men to get themselves killed in wars) for the acceptance of polygyny was that it helped to insure that some women and children, who would otherwise lack support, would have a man to provide for them. That historical justification is less valid today, but it remains the case that there are significantly more women than men in the world … which leads inevitably to the conclusion that if each woman is to enjoy the benefits of a legalized marriage, at least some degree of polygyny is not only acceptable, but necessary.

Separate and apart from all of that is the underlying fundamental issue of personal freedom and the right of consenting adults to enter into the romantic relationships of their choice. If two women want to marry the same man … and he is amenable to that arrangement … it is no business of mine — and, by extension, no business of the government’s — to tell them that they cannot do so.

There are certainly some legitimate societal issues involved, most notably the ability of the polygamous family to be self-supporting, so as not to be a burden on society (see comment above re the Muslim practice). That particular imperative, however, is no more compelling with respect to plural marriages than it is with respect to traditional marriages, into which many people enter despite a lack of financial stability and responsibility on the part of the couple.

Into the Future

It is fairly clear to me that whatever change to American society results from the Supreme Court’s marriage equality decision, it will not be the end of the world as we know it. And, to the extent that it is the end of the world as we know it, we will be a better society — and country — for the change.

——————————————————————————–

In 2008, when gay marriage was a significant issue in California, I blogged extensively on the subject. I am not so modest that I cannot observe that now both the California Supreme Court and the US Supreme Court agree with my legal and practical opinions!

“Remember these words: ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’

“I see nothing there which justifies a majority of people of any state (or, for that matter, all of the states) in denying to a minority group of people a right which the majority enjoys. Nor is there anything in the Constitutions of the United States or the State of California which would support denying people the right to join in a same sex marriage if they choose to do so.”

“… it appears to be the current state of constitutional scholarship (derisive laughter in the background) that ‘full faith and credit’ need not be given by other states to California same sex marriages.

“At least, that is, unless and until the U.S. Supreme Court steps in and recognizes that same-sex marriage is protected by the federal constitution. That court has already held in Lawrence v. Texas that homosexual sex is constitutionally protected, in the process invalidating a Texas law criminalizing sodomy. So it is, perhaps, not that big a step to full-fledged constitutional protection of gay rights and same-sex marriage.

“As an interesting (at least to me) aside, Justice Antonin Scalia, the self-styled “originalist” (his way of saying he’s a “strict constructionist” based on the “original” language of the constitution), dissented in Lawrence. Among other things, he complained that, by its majority opinion in that case, the court had:

“‘… largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.’

“He also worried that the decision would undermine other state laws relating to sexual activities, including those prohibiting same-sex marriage. So much for ‘originalist’ interpretation of ‘equal protection’ and ‘due process’, never mind what little is left of ‘full faith and credit’.”

“… if courts were to follow the Supreme Court’s reasoning to its logical ends, how could judges possibly uphold any state or federal law regarding private sexual conduct including incest, prostitution, polygamy, child molestation and child pornography?”

My response:

“The California Supreme Court decision held that consenting adults, even if of the same sex, have a right to marry. There is nothing ‘logical’ about extending that reasoning to such conduct as child molestation or child pornography, in particular, since neither involves consenting adults.

“The argument that this decision could lead to legalization of incest is a ‘slippery slope’ argument — there is a logical legal basis for differentiating between unrelated consenting adults and those whose degree of consanguinity would bring them within the definition of ‘incest’.

“Furthermore, the California court’s decision is based on the right of each individual ‘to establish a loving and long-term committed relationship with another person’, which would hardly seem to include the typical prostitutional relationship.

“The only one of the perceived ‘evils’ which might constitute a logical extension of this ruling is polygamy. That possibility, alone, hardly seems a reasonable basis on which to deny gays the right to marry.

“… proper constitutional interpretation starts not with the question of whether a particular right is ‘granted’ in the Constitution, but whether by anything contained in the Constitution the people have specifically given the government the power to deny the right which is the subject of controversy. In short, not ‘is there anything in the Constitution which gives gays the right to marry?, but rather ‘is there anything in the Constitution which gives the government the power to deny gays the right to marry?’

“… the Constitution is silent on the subject. That being the case, proper constitutional interpretation leads inescapably to the conclusion that the people have not given the government the power to deny gays the right to marry. To the extent that the court in the precursor case of Lawrence v. Texas found a ‘new right’ to make one’s own private sexual choices, it was mistaken … not because there is no such right, but because that right has been there since the day the Constitution was ratified and is not new at all.”

“… there is a religious basis for objecting to gay marriage, but religion is perhaps the worst of all foundations on which to base social policy. Which is to say nothing of the fact that our government is constitutionally prohibited from doing so.”

I have said before that I consider New York City Mayor Michael Bloomberg perhaps “the single most dangerous politician on the national scene these days.” For that discussion, see my blog post “Trashing the Constitution in New York City”:

Whatever doubt I might have had about that assessment has, thanks to Bloomberg’s dictatorial NYPD “stop & frisk” policy, reached the vanishing point. And what is sad, if not downright frightening, is that a substantial percentage (41%) of Americans approve of the gestapo-like tactics being used by the NYPD in their implementation of this policy.

It shows that 41% of Americans (and 60% of self-described Republicans) approve of the stop & frisk policy, while 49% oppose and 10% are so oblivious that they have no opinion.
.

The Terry Stop & Frisk Law:

In 1962, the United States Supreme Court in the case of Terry v. Ohio, 392 U.S. 1 (1968), established the so-called stop & frisk law, which allows police to briefly detain a person if they reasonably suspect that person is involved in criminal activity.

For the full text of Terry v. Ohio, see note 1 below.

The “reasonable suspicion” standard is somewhat less than probable cause to arrest, but there must nevertheless be some specific reasonable suspicion that the person is engaged in criminal activity of some kind. The Terry decision also held that police may do a limited search of the person’s outer garments for weapons IF they also have a reasonable and articulable suspicion that the person detained may be “armed and dangerous”. Such a search for weapons is what is now called “stop & frisk”.

Note that the Terry decision allows such a “frisk” (search) only if the officer(s) have a “reasonable and articulable suspicion” that the person is armed. It does notgive carte blanche to frisk every detainee, as Mayor Bloomberg and the NYPD seem to think.

Nor does it allow NYPD officers to willy-nilly stop & frisk anyone they choose, for any or no reason.

.

Floyd v. City of New York

Protesters participate in a rally near the federal courthouse March 18 in New York. Lawyers for four men who say they were illegally stopped said many of the 5 million people stopped, questioned and sometimes frisked by police in the past decade were wrongly targeted because of their race.

In the Southern District of New York federal case of Floyd v. City of New York, the plaintiffs are suing the city over the policy, which they claim has resulted in hundreds of thousands of unlawful stops, primarily (84%) involving blacks and Hispanics. The plaintiffs asserted and tried to prove in a recently ended two-month trial, that the policy is nothing more or less than racial profiling. The trial concluded on May 20, 2013, and post-trial submissions are due on June 13, 2013.

See notes 2 & 3 below for information about this case.

.

The Center for Constitutional Rights Expert Report

The 2012 Center for Constitutional Rights expert report on the subject of these stops (available through the link in Note 3 below), notes in part:

* Blacks and Latinos are significantly more likely to be stopped than Whites. Overall, Blacks and Latinos constitute 84% of the stops, a far higher percentage than their proportion of the city’s population. Even after controlling for crime, local social conditions and the concentration of police officers in particular areas of the City, Blacks and Latinos are significantly more likely to be stopped than Whites.

* This is true at both the neighborhood and the individual level.

Unjustified stops, in violation of the Fourth Amendment protection against unreasonable search and seizure

* Analysis of the information recorded by police officers themselves in their stop and frisk reports indicates that more than 95,000 stops lacked reasonable, articulable suspicion and thus violated the Fourth Amendment.

* The NYPD continues to frequently and indiscriminately use the highly subjective and constitutionally questionable categories of “high crime area” and “furtive movements”. “High crime area” is checked off in more than 60% of all stops. A comparison of actual crime rates to the claim that a stop was in a “high crime area” reveals that this factor was cited at roughly the same rate regardless of the crime rate. “Furtive movement” was also checked in a majority of stops, 53% of them. Here, too, there was no correlation between the frequency of this stated reason for a stop and actual crime rates. Both the frequency of these classifications and their complete absence of any relationship to actual crime rates suggest strongly that they are not legitimate indicators or reasonable, articulable suspicion.

* Only 6% of stops result in arrest, an extraordinarily small number given that stops are legally supposed to be based on reasonable, articulable suspicion. The rates of seizure of weapons or contraband are miniscule – .12% of stops yield gun seizures and 1.8% contraband – and are lower than the seizure rates of random stops. (Emphasis added)

.

Justifications: “High Crime Area” and “Furtive Movements”

During the time period 2004-2012, the NYPD averaged approximately 43,400 stops per month.

Anyone who has ever worked in either law enforcement, criminal prosecution or criminal defense knows that the assertion of “high crime area” (cited as justification for almost 61% of all stops) as the “reasonable suspicion” in support of detention is pure BS. This would allow detention of anyonewho happens to be in what the officers believe to be a high crime, regardless of whether there is any other reason to suspect that person of being involved in criminal activity.

Nor do “furtive movements” (cited in almost 54% of all stops) add anything to the “reasonable suspicion” that the individual is involved in criminal activity. A sampler of “furtive movements” cited by NYPD officers in support of “stop & frisk” contacts, as described in the Floyd expert study, include such “suspicious activities” as: riding a train, “looking around”, running from one train to another, crouching next to a vehicle, stopping “prematurely” for no reason, “evasive” movements or behavior, “hiding” in a room, holding an item “under a jacket”, “hanging out” in a lobby, “ducking in & out” of a building, “looking around”, looking “nervous”, “furtive movements” by a wall, “furtive movements” with black marker, “hiding behind” other people, “evading” a bus driver, “hiding” between vehicles, and “looking around at” subway gates.

(Separate and apart from this expert study, I have personally seen police reports in which “furtive movements” justifying “stop & frisk” contacts were described as: looking away or turning away from cops, walking away from cops, walking toward cops, putting one’s hands into pockets, taking one’s hands out of pockets, standing up from a squatting position, squatting down from a standing position, jerking one’s head from side to side, and simply making “suspicious” movements.)

.

Conclusion: Blatant and Rampant Unconstitutionality

These statistics paint a compelling picture of blatant and rampant unconstitutionality in the implementation of the New York stop & frisk policy. Nevertheless, Mayor Bloomberg commented, “I can’t imagine any rational person saying that the techniques are not working and that we should stop them.”

I’m not sure in what alternative reality Mayor Bloomberg’s “rational persons” must reside. Or how 41% of Americans can logically come to the conclusion that this policy is a good idea … or constitutional … or even particularly effective. It clearly is none of those things.

I consider myself a fairly “rational” person and I say, yes, Mayor Bloomberg, you shouldstop violating the constitutional rights of the citizens of your city.

This site contains links to all of the Floyd case expert reports and court documents, including the complaint, motions, declarations and court orders. Anyone who is interested in this issue would do well to review the documents linked on this site. I cannot begin to do justice to this material here in my blog.

North Carolina state representatives have introduced legislation that would, if adopted, purport to exempt the state from the strictures of the 1st Amendment of the U.S. Constitution and would allow North Carolina to establish an official state religion.

… is co-sponsored by state representatives Carl Ford (R-China Grove) and Harry Warren (R-Salisbury) and is backed by nine other republican representatives.

The proposed laws read as follows:

SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.

SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.

The name of the bill is “A JOINT RESOLUTION TO PROCLAIM THE ROWAN COUNTY, NORTH CAROLINA, DEFENSE OF RELIGION ACT OF 2013” and is denominated House Joint Resolution DRHJR10194-MM-54. The full text of the resolution is here:

The introduction to this bill acknowledges that the “Establishment Clause” of the 1st Amendment says “… Congress shall make no law respecting an Establishment of Religion, or prohibiting the free exercise thereof ….” It goes on, however, to declare that “… this prohibition does not apply to states, municipalities, or schools ….”

Supporters of the bill cite the 10th Amendment …

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

… for the proposition that the federal government cannot expand its powers beyond those specifically enumerated in the Constitution. They also also assert that the Constitution does not authorize either the federal government or federal courts to determine what “is or is not constitutional” and that, consequently, the ability to determine constitutionality is reserved to the states and the people thereof.

Apparently, these state legislators stopped reading when they finished with the 10th Amendment. They certainly didn’t get to section 1 of the 14th Amendment, which says in part …

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

… and which has been repeatedly held to mean that all of the protections of the Bill of Rights apply as to the states as well as the federal government. In other words, the Constitution of the United States of America does “prohibit states or their subsidiaries from making laws respecting an establishment of religion”.

And it does require the North Carolina General Assembly to “recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion”.

Thus, the state of North Carolina cannot constitutionally declare a state religion, whether this resolution passes or not.

On the other hand, I have to admit that it might be fun to watch them trying to do so. Fewer than 48% of all North Carolinians consider themselves active participants in any religion. The most popular religion in the state is Southern Baptist; however, just 19% of people in the state are active Baptists. Methodists total 9% and Roman Catholics (the fastest growing religion in the state) just over 4%. Other Christian denominations, including Episcopalian, Pentecostal, Lutheran, Presbyterian and Latter Day Saints (Mormon), range down from less than 3% to less than 1% each. All other splinter Christian denominations combined make up roughly 7% of the population.

Jews, Muslims and adherents of Eastern religions (who together total less than 1% of the state’s population) may, in any discussion of this subject, be voices in a Christian wilderness. However, adherents of which of the various Christian denominations do you suppose are going to stand idly by while some other denomination is declared to be the official religion of the state of North Carolina? Even if the proposed state religion is Baptist, will this be acceptable to the other 30% of North Carolinians who actively practice some other religion (never mind the 52% of the people in the state who are not active in any religion)?

And then, even if the North Carolina legislature is able to pass this resolution and declares an official state religion, we’ll have the consequent litigation and inevitable smackdown by the U.S. Supreme Court, the members of which — contrary to the beliefs of the sponsors of this legislation — believe it does have the authority to determine what “is or is not” constitutional. And which will certainly find any “establishment” of a state religion violative of the 1st Amendment.

Oh, by the way, one more thing — it appears that the sponsors of this bill have not even recently read their own state constitution, since the proposed bill violates Article 1, section 5 of the North Carolina constitution. This provision requires the state and its citizens (presumably including its legislators) to comply with federal laws:

Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force.

___________________________________

For other interesting (and somewhat amusing) discussions of this proposed legislation, see these articles on TheAtlantic.com website:

… which notes, in part: “You can safely file this under Not Gonna Happen. Even if the state passes the law, there’s no chance it would be upheld. Phillip Bump at The Atlantic Wire explains the fun circular logic going on: Yes, Marbury v. Madison established federal judicial review, but it was a federal decision so it’s not binding. (The Tar Heel State could of course try seceding, but that didn’t work out so well for them the first time around.)”

… which opens: “Let’s say you’re a state and you want, for some reason, to declare an official government religion. You’d probably recall that such behavior runs a bit afoul of the First Amendment to the Constitution. Leaving you with only one option: Decide that your state gets to interpret the Constitution however it sees fit.”

… adds: “Yes, the 1803 case of Marbury v. Madison clearly settled the issue of the primacy of federal judicial review, but that was decided by the Feds and they don’t have the right, so it doesn’t count. As WRAL notes, this strategy has been tried before to block federal measures that any particular state didn’t like at any particular time. Never, we should point out, successfully.”

… and concludes: “Anyway, the bill will never ever pass and if it did would quickly be struck down by the federal courts, since they have complete authority to do so. The end.”

… generated considerable discussion among my West Point classmates. One of them, John Douglas, is also an attorney with whom, on political issues, I more often than not agree. On this subject, however, he disagrees with both my interpretation of the language of the 2nd Amendment to the U.S. Constitution … discussed in detail at …

In response to my comment that proponents of gun control demonstrate an “inability or unwillingness to read and comprehend the plain language of the 2nd Amendment”, John replied:

… the 2d Amendment has a contradictory construction, a tortured legal history and is notably devoid of “plain language.” The Amendment (in the version ratified by the States) reads, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” According to gun rights advocates, this Amendment that speaks so highly of regulation clearly prohibits regulation of guns. Hmmm. Whatever it might have meant back then or should mean now, “the” meaning is hardly “plain”.

As I have said previously, I believe that the introductory clause to the 2nd Amendment is just that — an introduction which explains the reason for the right which is protected in the second clause, “the right to bear arms”. The fact that the introduction refers to a “well-regulated militia” implies regulation of the militia (that is, the body of non-military citizens who can be organized, if necessary, for military service), not a limitation on the rights of the individuals who comprise that militia.

I replied to John:

In any event, the “tortured” historical interpretation of the 2nd Amendment came to be only because representatives of the government contorted what is, on its face, clear and unequivocal, so as to make it possible for the government to impose controls which would otherwise have been impermissible.

A detailed explanation of my “plain language” interpretation of the amendment is here:

I don’t think the tortured history of the Second Amendment is due to ‘contortions by representatives of the government’, but is rather due almost entirely to the amendment’s obtuse wording. I’m told the former headquarters of the NRA had on the side of the building: ‘THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED.’ That is, of course, only half the amendment. So far as the NRA and like-minded folk were (and mostly are) concerned, that’s the whole amendment. Except it isn’t.

The next most important factors in the tortured history would be the historical evolution of gun ownership in the US and the role of gov’t here. In our early years, the federal gov’t’s role with guns was not particularly controversial. Early on it mandated musket ownership by all military age males AND regulated that (by requiring regular musters for inspections of the muskets & registration of the same). Despite what some now argue about prohibitions on regulations on ownership, our Founding Fathers actually altogether prohibited some classes of people from owning guns (such as slaves and even white males who refused to swear allegiance to the country). We have had many changing alliances and understandings regarding the roles of guns in our society (particularly those that followed the upheaval of the Civil War), which have accompanied the evolving and multifaceted interpretations of the 2d Amend. The short of it is that neither the wording of the Second Amendment nor the varying historical understandings of it are ‘plain’ or simple.

1792 Militia Act: It is true that in 1792, Congress passed a law essentially requiring, with some exceptions, all able-bodied white male citizens and residents between the ages of 18 and 45 to acquire and maintain a musket, related supplies and other military equipment. This law was poorly and unevenly enforced and did not, in fact, prohibit ownership of guns by slaves; it simply did not require them to have guns. Restrictions on gun ownership by slaves were imposed in the slave-owning states, but not by federal law. Of course, under the constitution, slaves were not considered citizens (or even “whole” people, counting as they did under the constitution as only “three-fifths” of a person each), so would not have been covered by the 1792 militia act in any event.

Commentary by St. George Tucker: A good indication of what the 2nd Amendment “plainly” meant can be ascertained from the early legal commentaries on the subject. The earliest known such commentary was written in 1803 by St. George Tucker, whose annotated five volume edition of Blackstone’s Commentaries on the Laws of England contained the observation that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law:

The right of the people to keep and bear arms shall not be infringed … and this without any qualification as to their condition or degree, as is the case in the British government ….” (emphasis added)

Tucker went on to express the hope that Americans “… never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.”

No clause could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

Rawle’s comment is particularly interesting in its suggestion that the 2nd Amendment could be relied upon to restrain state laws infringing on the right to bear arms. This comment presaged the limitation on state power ultimately included in the due process clause of the 14th Amendment, which was not passed until 43 years later. Section 1 of the 14th Amendment provides in part, “… nor shall any State deprive any person of life, liberty, or property, without due process of law”.

Commentary by Joseph Story: In 1833, Joseph Story published his Commentaries on the Constitution. As expressed in those “commentaries”, his view the meaning of the Amendment was clear (and “plain”):

The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. (emphasis added)

In short, one of the primary purposes of the 2nd Amendment was to enable the people to protect themselves, if necessary, against the government. That objective can hardly be accomplished if the government has the power to constitutionally infringe on the right of those same people to bear the arms needed for that very protection.

It was not, in fact, until after the American Civil War and on into the 19th century that legal scholars and commentary began to call into question whether the 2nd Amendment provided an individual right to bear arms or merely a “collective” right of the people to maintain an armed militia.

And that question, of course, was finally answered by the U.S. Supreme Court in its 2008 decision in District of Columbia v. Heller, 554 U.S. 570 (2008), the full text of which can be seen here:

In this decision, the Supreme Court held that the 2nd Amendment does protect an individual right to possess firearms unconnected with service in a militia; that such weapons may be used for “traditionally lawful purposes”, such as self-defense; that the first clause of the 2nd Amendment “announces a purpose”, but does not limit the second and operative clause of the amendment; and that the text and history of the phrase “the right of the people to keep and bear arms shall not be infringed” indicates “an individual right to keep and bear arms”.

.

The effects of gun control

John Douglas also took exception to my discussion of the statistical evidence regarding the effects of gun control, saying:

I am also immediately turned off when a gun rights advocate attacks statistics on the effects of gun control with the ‘there is no evidence’ chain of reasoning. One of the reasons we have limited evidence on the effects of gun possession in the US is the NRA’s successful stifling of research in the area – and, indeed, in the very collection of data upon which research might be done. At the peak of gun violence in the early 90s, research results were released showing the higher death rates in homes with guns. (emphasis added)

John then cited two studies funded by the Centers for Disease Control in support of that conclusion, studies the results of which are available at:

The first of these studies addressed homicides in three American counties (Shelby County, TN; King County, WA; and Cuyahoga County, OH) during the years 1987 through 1992. This study notes that more than 24,000 homicides were being committed across the country every year, indicating that approximately 120,000 homicides were committed during the five years addressed by the study. However, the study actually considered just 420 homicides, or roughly 1/3 of 1% of the total U.S. homicides committed during those years.

Regarding the 420 homicides that were considered, the study noted:

Two hundred nine victims (49.8 percent) died from gunshot wounds. A knife or some other sharp instrument was used to kill 111 victims (26.4 percent). The remaining victims were either bludgeoned (11.7 percent), strangled (6.4 percent), or killed by other means (5.7 percent).

The study ultimately concluded that there was an increased risk of homicide in the home if guns were present (though it is readily apparent that even without guns, if people wanted to kill other people in their homes, there were a variety of other effective means available for that purpose). However, the study also concluded that there were other factors which were “strongly and independently associated with an increased risk of homicide in the home”, including rental rather than ownership, living alone, previous violence in the home, previous arrest of any resident of the home and drug use in the home.

In fact, four of these five other factors were found to have created a greater increased risk of homicide in the home than did the presence of guns. Use of drugs created an increased risk of homicide that was more than double that of the presence of guns in the home; previous violence and living in a rental home each created a risk of homicide in the home 63% greater than the presence of guns; and living alone created a risk of homicide in the home 37% greater than the presence of guns. The only characteristic that created a lesser increased risk of homicide in the home than the presence of guns was the prior arrest of a resident in the home.

The sample in this study was so small as to be virtually meaningless in the big picture of gun violence and control. Nevertheless, if taken at face value, it indicates that it is more important, in terms of reducing homicide in the home, to control drug use and violence in the home than it is to control the presence of guns. In fact, if governmental policy is to be based on this type of statistical analysis, it would also appear to be more important to prohibit people from living alone or renting homes than it is to control the presence of guns.

In other words, this study isn’t very helpful in determining whether or not increased gun controls are useful in preventing homicides in the home or generally.

The second of the two studies John cited addressed 554 in-home suicides in two counties (Shelby County, TN, and King County, WA) over a 32 month period from 1987 to 1990. Of these suicides, approximately 58% were committed using firearms.

While this study found an increased risk of suicide based on a gun being kept in the home, four other factors were found to have an even higher correlation to increased risk of suicide than the presence of a gun. Use of prescribed psychotropic medication created an increased suicide risk 7.5 times that created by the presence of a gun; previous hospitalization for alcohol use more than three times; use of drugs more than double; and living alone slightly higher than the presence of a gun in the home. Even failing to graduate from high school had a correlation to an increased risk of suicide that was almost equal to that created by the presence of a gun in the home.

In short, this study is even less useful than the other in determining whether or not greater government control of guns would be appropriate or effective at achieving the desired goals of gun control.

.

A straw man argument?

John also took exception to my discussion on another ground:

Finally, and perhaps most egregiously, you set up a straw man argument and, not surprisingly, defeat it, when you claim that gun control advocates are asserting that an increase in the number of guns – irrespective of all other variables – leads to an increase in crimes, especially murder.

To which I say, anyone who contends that reducing the number of guns in the possession of law-abiding citizens will reduce violent crime and murder is also necessarily claiming that an increase in the number of guns will have the opposite effect. If you don’t contend that reducing the number of guns in the possession of law-abiding citizens will reduce violent crime and murder, then what is the purpose of imposing new laws and regulations designed to accomplish that goal?

John added:

I’m sure there are a few ill-informed fringe gun control advocates who think that way, but no reasonable proponents do. We all have to recognize that violence levels have many causes.

And to that I say, exactly. And that is in fact the primary point of my opposition to the reflexive response of so many that simply imposing stricter gun controls will substantially reduce or even eliminate violent crime. Interestingly, the two studies cited by John above actually support the conclusion that there are other factors which are much more important, at least with respect to deaths in the home, whether homicides or suicides, than the mere presence in the home of firearms.

John also disagreed with the statistical analysis I presented in “Dispelling the Myth …”, suggesting that the best comparison regarding prevalence of guns and murder rates is not between the U.S. and countries such as Mexico and Honduras, but “comparable” countries like Canada (even though Canadians have no rights comparable to those granted to Americans by the 2nd Amendment). He notes that Canada is 31st in “homicide rate” (below the U.S., which is 14th), while the U.S. has a homicide per 1000 guns rate that is 7 times that of Canada.

And yet, the overall homicide rate in the U.S. (4.8 per 100,000 people in 2010) is just 3 times that of Canada; meaning, of course, that Canadians are easily finding other ways, in the absence of ready access to guns, to kill each other. Just as Americans would if they did not have access to guns.

There are other considerations which must be accounted for in any comparison between the American and Canadian gun-related and overall homicide rates. For example, while it is true that the homicide rate is higher in the U.S., the overall difference in the rate of violent crimes, including homicides, has decreased, as the rate of violent crimes dropped faster in the U.S., during the 1990’s and 2000’s, than it did in Canada.

Other factors have a significant impact on the relative homicide rates for reasons that are largely unrelated to access to or possession of guns. The U.S. has more cities with large, concentrated populations, and cities almost invariably have higher murder rates than rural areas, even in countries with strict gun controls and relatively rare private gun ownership. The U.S. also has substantially more and a higher rate of both gang activity and drug related crime than does Canada; each of these criminal activities contribute disproportionately to the rate of gun-related homicides.

Elimination of the “insane war on drugs” and adoption of social policies designed to reduce gang activity would each do more to reduce the “gun-related” homicide rate in the U.S. than any of the proposed “gun control” measures.

.

Conclusion

John wrapped up his comments by saying:

As for the effects of gun control, I harbor no illusions that implementing even draconian restrictions would quickly alter our level of gun violence, since we are awash in guns and it would take decades to ‘drain the swamp’. The modest restrictions on gun ownership that have been implemented here and there in the past, and that are likely in the future here, are mostly band-aids on a large open wound and will have at most a modest effect on gun violence. To me, that’s sad, but that is the political reality.

However, despite my pessimism on what can be done in the US, I stand by what I regard as the clear balance of evidence in regard to the relationship between the level of violence and the prevalence of guns. When you compare countries with comparable levels of development and comparable social structures, the ones with much lower levels of gun ownership have much lower levels of gun violence.

And I stand by my own analysis in this regard, though I have to agree with the ultimate extrapolation of John’s concluding comment. That is, there can be no doubt that if there were no guns in the U.S., there would be no gun violence in the U.S. That, however, is not really the point, as we are never going to have a society in which there are no firearms, nor would or should we want to have such a society.

Furthermore, neither I nor John have addressed the issue of gun control from the perspective of those who have actually used guns in defense of themselves, their homes and their loved ones.

Or why and under what possible future circumstances the availability of firearms for such protection be desirable, if not essential, to the survival of not only individuals, but our society as a whole.